In this section I want you to come to terms with the constitutional design of the chief executives of the United States and Texas. We have certain expectations about what these offices are all about, but to what degree are these expectations accurate? In the last section we discussed the evolution of executive power througout British and colonial history. Hopefully you got a sense of how problematic the power can be. On the one hand, a strong executive is able to keep the peace in a society, which can allow individuals in society to focus on things other than self preservation. The ensuing productivilty can make that society prosperous. But a strong executive can also rule arbitrarily and place himself atop other powers -- temporal and spiritual -- in society. Care must be taken to ensure that a balance is stuck between two extremes. The executive power can be neither too weak nor too strong. As with the legislative power, the key is in the design of the institution.
The United States and Texas Constitutions approach the subject in two distinct ways. The national executive is designed with the idea that an energetic executive is central to a functioning government. The state executive is not. Singular control over all the executive apparatus will allow for corruption and abuse. The goal of this section is to understand as fully as possible the different ways that these respective institutions are designed.
Timeline:
1786: Annapolis Convention
1787: The Constitutional (or Philadelphia, or Great) Convention held.
1787 - 1788: The Federalist and Anti-Federalist papers written. See below for link to those concerning executive power.
1788: The Constitution is adopted.
1789: George Washington becomes first president
1832: Texas Convention of 1832.
1836: Texas Convention of 1836.
1874: Edmund Davis removed from office.
1875: Texas Constitutional Convention of 1875.
1876: Article 4 of the Texas Constitution. Study Guide Questions. Lecture students should use these to guide their readings and prepare for the quiz.
- What were the major disputes about the design of the executive in the Constitutional Convention and in the Federalist / Anti-Federalist Papers?
- What are the pros and cons of the singular and plural designs for the executive branch?
- How expansive is the nature of executive power granted to the president in the vesting clause?
- Why was the electoral college created? How has it been mofied over time?
- What specific powers is the president given in the Constitution?
- What is advice and consent and what controversies exist about it?
- What checks does the president have over the other branches? Quiz Questions for Online Students
Spring 2010
Answer each in at least 150 words.
1. Article Two vests the executive power in a president, which means that one person is in charge, to some degree, of the entire executive branch. Nothing is said directly about the extent of this power, but proponents of the unitary executive theory argue that the president's powers should be vast. Read up on these arguments below and comment on whether the unitrary executive theory argues for an executive with too much strength.
2. Select one of the pairings of Federalist and Anti-Federalist pappers below and outline the arguments in each.
3. Though controversial, presidents continue to be elected by the Electoral College. Detail the purposes behind this unique election design, how it was originally intended to function and how it has been modified over time. Wiegh in on the argument about whether it should be changed and what the likelihood is that it could be changed.
4. Detail the differences between the design of the executive branch in the U.S. Constitution and the design in the Texas Constitution.
email this to me by the due date in the syllabus. An Overview of the Debate over the Executive in the Federalist Papers
- 67 (Federalist - Anti Federalist) George Clinton outlines a variety of fears concerning the executive branch which Hamilton argues are misrepresentations of the actual design in the Constitution. Clinton was afraid that too much power was being concentrated in the hands of one person and that there was limit on how long the person could serve. History suggests that such positions allow people to assemble individuals who would be able to keep the executive in power. His power over the military and ability to pardon people would be dangerous. The power to pardon could be used to hide any of his own illegal activities. The design would likely lead to the establishment of a monarchy with its abuses, notably the use of royal prerogative. Hamilton states that the arguments against the president assume that teh president has already turned into an absolute monarchy without taking into considerations the checks that are meant to ensure that this is unlikely to happen. The president cannot act in many cases without the approval of the Senate, an institution he cannot control.
- 68 (Federalist - Anti Federalist) The pros and cons of the Electoral College are discussed. Hamilton argues that this seems to be the least controversial part of Article 2. The electoral college was designed to ensure that the selection of the president was last likely to be influenced by the "heat and ferments" to be expected in the general population. The temporary nature of the institution would ensure that intrigue woudl be kept to a minimum -- deals couldn't be worked out ahead of time. A legislative institution has no influence over the president's election.
- 69 (Federalist - Anti Federalist) Hamilton argues against the idea that the president is effectively a king. The office is not hereditary, it has to be reelected every four years, and has a limited veto over legislation. The power of commander in chief is less than the military powers of the king, as is how power of pardon. The president's control over foreign affairs is checked by the Senate. No such check exists for a monarch. Richard Henry Lee disagrees. The powers granted to the office of the president lead to the perpetuation of power in the hands of a small handful of individuals which will keep the president in power. He suggests that a hereditary monarchy may even be better because the family will have a connection tothe country that will make them less likely to mismanage it.
- 70 (Federalist - Anti Federalist) Anti Federalists were concerned that powers granted to the president would turn him into a king. These grant the president prerogative powers, and the ability to raise certain people to high positions, event though they are not aristicratic. The fact that the president is elected makes this worse, because those he raises to high office, especially in the military, will do all they can to ensure that he continues to win election. This adds an elements of unrest that would not exist in a hereditary monarchy. Hamilton argues that an energetic executive is essential to good government, and a singular design allows for the unity necessary to facilitate it.
- 71 (Federalist - Anti Federalist) Hamilton argues that a president must be in office for a reasonable period of time in order to be effective, and to have enough invested in the office to care about doing a good job. A degree of independence from the legislature is necessari in order for laws to be effectively implemented. Four years may not even be enough.
- 72 (Federalist - Anti Federalist) Hamilton argues against term limits. Offers a variety of reasons: The threat of removal from office is no longer an inducement to good behavior, presidents on their way out will be tempted to pad their pockets.
- 73 (Federalist - Anti Federalist) Hamilton points out two ways that the president's independence is established. Congress cannot manipulate the president's salary. This frees the president from being controlled by Congress. The executive can also protect itself with the veto, which allows the president the ability to negate the laws that the legislature sends him to enact.
- 74 (Federalist - Anti Federalist) Hamilton states that it is obvious that the president, and only a single president, should be commander-in-chief of the armed forces. He justifies the pardoning power as a means of ensuring that the justice system not be cruel. The Anti-Federalist are concerned that the president will turn into a military king.
- 76 (Federalist - Anti Federalist) Hamilton argues that a single person should make the appointments for the executive branch. The Constitutional Design
This article begins, as do articles 1 and 3, with the vesting clause which is the mechanism that in fact separates the three powers into three institutions. The openign sentence states that: "The executive Power shall be vested in a President of the United States of America." Simple enough, but this was the result of a contentious point during the convention. How many people should head up the executive branch? Hamilton saw a strong executive, preferably a single person with near absolute power who ruled for life, as essential to good governance. Others were convinced that this would lead to a military dictatorship given time. The ultimate decision was influenced heavily by the presence of George Washington as the presiding officer of the convention. The greatest concern with having a single person as President was that he wanted to turn it into a permanent office. It had been assumed -- by Madison in Federalist #51 -- that anyone in a position of power would be fueled by ambition and would want to expand their power. A President simply might not want to step down, and might use their commender in chief power -- and control over patronage -- to do so.
This is why Washington's presence was so vital. He was the only person in the country at the time who had faced that temptation and let it go. After the revolutionary war he had to talk his officers out of taking over the government. He then resigned his commission with a flourish and went back to his fields. He said that his public life was over. He was compared to the Roman General Cincinnatus who similarly stepped down from a military commission to go back to his fields. (See also the Society of the Cincinnati). When called to preside over the convention he was worried whether he would be seen as going back on his word, but ultimately he was convinced that his participation was key to the success of the convention and ultimately of the union itself. His reputation for virtue -- control over his ambitions -- increased the degree of trust given to the proceedings. It was generally assumed at the convention that Washington would occupy the first office (which he would do, setting in place many presedents for how future presidents would use the office). So the question of design was in many ways answered not by argument, but by personality.
The question of presidential power is complicated by a key ommission in sentence's language. As opposed to Article 1, which states that Congress is vested with the legislative powers "herein granted," Article 2 does not use that language. It says all executive power is vested in the president. Supporters of the unitary executive theory argue that this means that the president's power, particularly the inherent power that come with being commander in chief, are open ended and cannot be checked by the other two branches.
The clause continues by stating that the president has a four year term. This length of time allows the president to be immune from the preferences of the general population every other election. This helps reinforce the executive's independence from the legislature. Mid term elections, the phrase we use to refer to congressional elections held at the midpoint of presidential terms, are significantly different than presidential elections. Voter turnout tend to be both lower and composed of individuals opposed to the president's policies. It concludes by stating that the President is elected together with the vice president. Nothing is said specifically about the position and what the occupant is to do. In Article 1 the Vice President is the presiding officer of the Senate, but no specific executive function is given to the position in Article 2 other than replacing the President "in case of the removal . . . from office, or of his death, resignation, or inability to discharge the powers and duties of the said office."
Clauses 2 and 3 outline the original way that Presidents and Vice Presidents were chosen: Each State shall appoint, in such manner as the Legislature may direct, a number of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or person holding an office of trust or profit under the United States, shall be appointed an elector. As with the design of the executive itself, the method of selecting the president was disputed at the convention. The Electoral College has since become highly controversial. Early on, some argued for direct elections of the president, but others were concerned whether the ordinary voter who did not have access about the ability and character of potential candidates would be able to make good decisions about who the best national executives might be. The result would simply be a variety of regionally supported candidates likely to use the powers of the office to the advantage of their region. Competitive elections for the electoral college would allow a population to select those among them who could best determine who would make the best president.
The creation of the Vice President was intended to defuse the possibility of regional candidates. As originally designed, the electors voted for two people to be president. The one with the highest number of votes, provided it was a majority, became President, while the person in second place became Vice President. One of the votes had to be for someone who did not live in the same state as themselves. This was to limit the impact of regional prejudice. Teh designers of the Electoral college did not foresee the development of political parties. Soon groups were offering candidates and organizing support for them. In 1796 this resulted in the two top offices being held by people from each of the two major parties. The Twelfth Amendment eliminated this possibility by stating that electors voted on one ballot for a president and a vice president together.
There is an additional justification of the electoral college, one rooted in the separation of powers. One of the primary resources that tyrants have to gain powers is the people. Caesar, for example, used the support of the people against the Senate. This is why they killed him, and also why some of the conspirators were hunted down in the streets. A close connection between the House of Representatives and the President could allow for a similar coup. A direct popular election could tie the powers of the two offices together and the president could use the house to pass whatever laws he pleased for whatever purpose he desired. A selection process that involved a group of people that meet for the one purpose of selecting the president would be unable to coordinate with that individual to seize additional power.
Age and residency requirements are higher for the president than for other offices. This is the only office that must be held by a "natural born citizen."
The President is to be compensated for his service. Benjamin Franklin actually suggested that the president should serve without compensation, but that was not taken seriously at the convention. There was the issue of corruption or intimidation to worry about. Whoever controls the purse string -- as does Congress -- controls the person or office. So a clever Congress could raise or lower a President's compensation to persuade him to go along with their dictates. This would lead to a concentration of executive and legislative powers. The requirement that pay be kept steady during the term of office was to ensure that this would not happen.
Still, there are allegations often made about presidents -- as well as members of Congress -- that they make policy decisions in a way that will help them once they leave office. Hamilton argued against term limits because they would encourage elected officials to think about their careers after leaving office and would inevitably use their existing power to set themselves up for it. Recent controversies concerning donations to presidential libraries are a current example.
The first section concludes with the oath of officethe president is to take upon being sworn into office. Upon taking the first oath, Washington added "so help me God" at the end of the oath, and every president since has followed suit. This helps stir up debate concerning the role religion is, or is not, to play on the national level.
The first clause in this article is the closest we get to a job description for the office. He is the commander in chief of the military, but there is no clarity regarding what it means to be commander in chief, so the functions of the office is subject to expansive or limited interpretations. These are sometimes called inherent powers since they concern what a commander ought to be able to do while a conflict is underway. Sometimes these powers have been argued to the level of plenary powers, meaning that they cannot be questioned in any other place. The controversy that can result from this claim should be obvious.
During war, Presidents often claim a variety of powers, seemingly unconnected with the conflict, fall under this clause. Lincoln, for example, freed the slavesunder the commander in chief powers. This applied only to the states that were rebelling, not the small handful of slaveowning states that did not. Lincoln had no authority over them. The 13th Amendment was necessary in order to establish that slavery was illegal across the country.
Anti-Federalists habitually looked at the commender in chief clause as proof that the country was destined to turn into a military dictatorship under the thumb of the President. The argument used against this allegation was that Congress had the power to raise and fund armies, declare war and the other war powers related to the military. The clause would only make Presidents powerful while the country was at war. Once the war was over, the military would disband and the President's power would dissipate until the next war called for the raising of a different army. But after World War II, the army did not disband, and we have had an ongoing standing army since then. Declarations of war have not been necessary to raise armies. In fact, war has not been declared since WW2, though we do seem to have been involved in military enterprises that seem to have been wars. Often our involvement in these conflicts have been driven by presidential initiatives, and justified after the fact with authorizations for the use of force. Whether this has led to an undue, or unconstitutional, increase in presidential power -- as the anti-federalists warned -- is good fodder for debate.
The clause goes on to state that the President shall require the opinion of the heads of the different executive departments. This is the closest we get to a mention of a bureaucracy, and it does not mention any specific department (like Treasury and State) only that there shall be departments. It is up to Congress to pass the laws which establish these entities. The President, by virtue of the authority to collect their opinions, is chief executive. Beyond that statement, no specific authority is granted, or denied, in the language. Again, these are powers that have been established, and contested, over the course of American history.
The heads of the executive agencies have evolved into the cabinet, and are generally considered to be among the President's key sources of advise. As the size of the country has grown, the number of executive agencies has increased as well. The range of advising organizations has also increased. This is a direct consequence of the burden placed on the presidency due to the increased responsibilities of the office. After the passage of many New Deal proposals, the Brownlow Committee recommended the creation of the Executive Office of the Presidency. And beginning with the presidency of Eisenhower, a chief of staff has headed a White House Staff that has increasingly contained the closest advisers to the President.
The President is also granted power over the judiciary in this clause. He has the power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment. This is an ancient power of executives and is intended to check potential abuses by the judiciary, but it can also create its own set of problems since pardons can be used to help political supporters. One consequence of this power, perhaps unforeseen, is the idea that since the executive is granted this power the judiciary is absolved from anything beyond the simple procedural issues associated with a case. Broader questions regarding whether a decision was "just" is given to the executive to decide.
The second clause concerns the president's treaty making and appointment powers. The former is a way to esure that a single individual would be able to overcome the particular interests that allowed the states to undermine American competitiveness by competing ageinst each other for foreign trade. The latter is a further example of the power needed to be an effective chief executive. Both are subject to Senate influnce through "advise and consent." While the former is still in use, the precise meaning of the former can be up for debate. Stories exist about early unsuccessful attempts by Washington to use the Senate as an advisory body. He began using his top level executive department appointees as advisors instead, and ever since the cabinet has been assumed to be the predominant source of presidential advise (though more recently the White House Staff has fulfilled that role).
Exceptions are made to both powers. The Constitution says nothing about executive agreements, but these are smaller level agreements that fall short of treaties and do not need Senate approval. The Constitution does stipulate that the Congress can allow the President to make inferior appointments, or even give that power to lower level officials. Depending on the relationship that the President has with Congress, the nomination process can be very controversial. When there is divided government, meaning that the President is a member of a different party than Congress, presidents may be unable to have their prefered appointments accepted by Congress. When this occurs, Presidents sometimes use the constitutional power to make appointments during recesses of Congress to place these people into offices without congressional approval.
This section begins by clarifying some of the President's powers over Congress. It begins with the ability of the President to influence the legislative agenda by issuing messages concerning the state of the union. The President is then able to make recommendations about what legislation Congress should pass and what problems it should focus on. This reminds us that the President is a major source of legislative proposals. Presidents regularly send to Congress legislation that they would like Congress to pass. Presidential staffs also contain people who focus primarily on legislative relations. It is their job to organize and monitor the process that laws take on their way through the Congress.
The ability to convene special sessions of Congress tends to be limited to times when either the president or a head of state wishes to address the legislature. The ability to adjourn Congress is very limited, and rarely used, since it smacks of the types of abuse of power common to the Stuarts.
The power to receive ambassadors is a diplomatic power which also means that the President can recognize nations. Since the Senate is not given a role in checking this power, this means that the president has full power to determine what nations we recognize as legitimate and what nations we do not.
The requirement that he faithfully execute the laws is the essence of executive power, but it can also be controversial. Especially during times of divided government a President may not want to faithfully execute a law that he disagrees with. Signing statements are sometimes used to alter the meaning of legislation so that the President can claim that they are following the letter of the Constitution, while still avoiding the intent of the legislation.
The last clause in section 3 refers to an additional military power held by the president, the ability to commission all the officers of the United States.
This brief section simply states that the President, Vice President, and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.
The dispute in this section regards the precise meanign of "high crimes and misdemeanors" and the fear that efforts to remove Presidents from power would be politically based, not based on actual abuses or power.
Key Constitutional Features of the Texas Executive
As with the rest of the Texas Constitution, it is more detailed and longer than the U.S. Constitution. This reflects attempts to weaken the office. Generally, the less said about an office's powers, the more discretion its occupants to take with it. This effort was a consequence of three factors, two of which apply to the design of both the legislative and judicial branches. The Texas Constitution was designed by individuals who wanted the electorate to have greater control over the actions of government across the board. Direct elections to plural executive offices is one way to do this. We sacrifice efficiency in the execution of laws, but this is to gain greater ability, at least theoretically, to control the executive branch. A second factor is the immediate experience of reconstructions and the imposition of federal troops in the state to implement law until the state was allowed to conduct its own affairs. This included the implementation of laws that were very unpopular in the state, including the 14th and 15th amendments. A final reason is the experience Texas went through with the governorship of E.J. Davis, and the termination of his governorship in the Coke-Davis controversy.
Key Sections:
Section One: establishes the plural form of the Texas executive. In addition to the governor and lieutenant governor, it includes the attorney general, comptroller of public accounts, secretary of state, and the commissioner of the land office. The holder of each office is elected separately with its own constituency, and is not bound to any allegiance to the governor. As a party official, and through force of personality, the governor may have influence with these individuals, but there is no constitutional or legal mechanism that binds them.
Sections 2 and 3: Elections
Section 4: Establishes that the governors has a four year term of office. Before 1974, it was a two year term.
Section 5 and 6: Compensation. As opposed to the memebrs of the legislature, the governorship is a full time job. The governor cannot hold another position while he is governor. It is expected that legislators will.
Section 7: The governor is commander in chief of the state militia
Section 8: The governor can call special sessions, but must state the purpose of the session.
Section 9: State of the state address and infomration regardign public monies.
Section 10: Must faithfully execute the laws.
Section 11: The legislature must establish a Board of Pardons and Paroles and the governors must take their recommendations into consideration for pardons.
Section 12: Vacancies
Section 13: The governors' residence.
Section 14 and 15: Approval and disapproval of bills, orders and resolutions
Answer each of the three questions below in at least 150 words
1 - Select one of the pairs of Federalist/Anti Federalist Papers below and outline the dispute between them.
2 - Compare Article 2 of the U.S. Constitution and Article 4 of the Texas Constitution. Where are they similar and where are they different?
3 - Is is argued that the current powers of the president go far beyond the powers granted to the office in the Constitution. Critically evaluate this claim. Look at the range of powers the president is granted in the COnstituion and then look at the types of things President Obama -- or President Bush before him -- does. Is he acting within the limits set within the Constitution? Why or why not?
Due Friday March 6th. Quiz Questions for Online Students
Summer 2009
Answer each in at least 150 words.
1. The decision to establish a singular executive on the national level was highly controverisal. Texas would later decide to establish a plural executive instead. Explain the controversies associated with the singular executive and why it was eventually written into the U.S. Constitution and why the plural executive was written into the Texas Constitution.
2. Fully detail the original intent of the Electoral College and how the institution has been modified over time. Does it continue to serve its original purpose? What are the arguments for and against substituting the Electoral College with a direct election by the general population?
3. The Constitution says little about the job description of the President. Nevertheless, the position has expanded greatly over the course of American history. Some argue that this expansion has violated the original intent of the authors of the Constitution while others claim that the position has to evolve in order to keep pace with a rapidly changing and dynamic society. Outline the pros and cons of an increasingly powerful presidency.
4. Detail the way the checks the president has over the other two branches are being used currently. How is Obama checking the power of the legislature and the judiciary. Use current news courses to answer this question.
Write at least 150 words for each assignment. Due by midnight July 19th.
Topics of the Federalist and Anti-Federalist Papers
- 67 (Federalist - Anti Federalist) George Clinton outlines a variety of fears concerning the executive branch which Hamilton argues are misrepresentations of the actual design in the Constitution.
- 68 (Federalist - Anti Federalist) The pros and cons of the Electoral College are discussed.
- 69 (Federalist - Anti Federalist) Can the office of the presidency lead to the perpetuation of power in the hands of a small handful of individuals?
- 70 (Federalist - Anti Federalist) Will the presidency turn into an elected king?
- 71 (Federalist - Anti Federalist) Hamilton argues that a president must be in office for a reasonable period of time in order to be effective, and to have enough invested in the office to care about doing a good job. A degree of independence from the legislature is necessari in order for laws to be effectively implemented. Four years may not even be enough.
- 72 (Federalist - Anti Federalist) Hamilton argues against term limits. Offers a variety of reasons: The threat of removal from office is no longer an inducement to good behavior, presidents on their way out will be tempted to pad their pockets.
- 73 (Federalist - Anti Federalist) Hamilton points out two ways that the president's independence is established. Congress cannot manipulate the president's salary. This frees the president from being controlled by Congress. The executive can also protect itself with the veto, which allows the president the ability to negate the laws that the legislature sends him to enact.
- 74 (Federalist - Anti Federalist) Hamilton states that it is obvious that the president, and only a single president, should be commander-in-chief of the armed forces. He justifies the pardoning power as a means of ensuring that the justice system not be cruel. The Anti-Federalist are concerned that the president will turn into a military king.
- 75 (Federalist - Anti Federalist) Hamilton justifies the nature of treaty making power.
- 76 (Federalist - Anti Federalist) Hamilton argues that a single person should make the appointments for the executive branch.
The Executive: Constitutional Design
In this section I want you to come to terms with the constitutional design of the chief executives of the United States and Texas. We have certain expectations about what these offices are all about, but to what degree are these expectations accurate? In the last section we discussed the evolution of executive power througout British and colonial history. Hopefully you got a sense of how problematic the power can be. On the one hand, a strong executive is able to keep the peace in a society, which can allow individuals in society to focus on things other than self preservation. The ensuing productivilty can make that society prosperous. But a strong executive can also rule arbitrarily and place himself atop other powers -- temporal and spiritual -- in society. Care must be taken to ensure that a balance is stuck between two extremes. The executive power can be neither too weak nor too strong. As with the legislative power, the key is in the design of the institution.
The United States and Texas Constitutions approach the subject in two distinct ways. The national executive is designed with the idea that an energetic executive is central to a functioning government. The state executive is not. Singular control over all the executive apparatus will allow for corruption and abuse. The goal of this section is to understand as fully as possible the different ways that these respective institutions are designed.
Timeline:
1786: Annapolis Convention
1787: The Constitutional (or Philadelphia, or Great) Convention held.
1787 - 1788: The Federalist and Anti-Federalist papers written. See below for link to those concerning executive power.
1788: The Constitution is adopted.
1789: George Washington becomes first president
1832: Texas Convention of 1832.
1836: Texas Convention of 1836.
1874: Edmund Davis removed from office.
1875: Texas Constitutional Convention of 1875.
1876: Article 4 of the Texas Constitution.
Study Guide Questions. Lecture students should use these to guide their readings and prepare for the quiz.
- What were the major disputes about the design of the executive in the Constitutional Convention and in the Federalist / Anti-Federalist Papers?
- What are the pros and cons of the singular and plural designs for the executive branch?
- How expansive is the nature of executive power granted to the president in the vesting clause?
- Why was the electoral college created? How has it been mofied over time?
- What specific powers is the president given in the Constitution?
- What is advice and consent and what controversies exist about it?
- What checks does the president have over the other branches?
Quiz Questions for Online Students
Spring 2010
Answer each in at least 150 words.
1. Article Two vests the executive power in a president, which means that one person is in charge, to some degree, of the entire executive branch. Nothing is said directly about the extent of this power, but proponents of the unitary executive theory argue that the president's powers should be vast. Read up on these arguments below and comment on whether the unitrary executive theory argues for an executive with too much strength.
2. Select one of the pairings of Federalist and Anti-Federalist pappers below and outline the arguments in each.
3. Though controversial, presidents continue to be elected by the Electoral College. Detail the purposes behind this unique election design, how it was originally intended to function and how it has been modified over time. Wiegh in on the argument about whether it should be changed and what the likelihood is that it could be changed.
4. Detail the differences between the design of the executive branch in the U.S. Constitution and the design in the Texas Constitution.
email this to me by the due date in the syllabus.
An Overview of the Debate over the Executive in the Federalist Papers
- 67 (Federalist - Anti Federalist) George Clinton outlines a variety of fears concerning the executive branch which Hamilton argues are misrepresentations of the actual design in the Constitution. Clinton was afraid that too much power was being concentrated in the hands of one person and that there was limit on how long the person could serve. History suggests that such positions allow people to assemble individuals who would be able to keep the executive in power. His power over the military and ability to pardon people would be dangerous. The power to pardon could be used to hide any of his own illegal activities. The design would likely lead to the establishment of a monarchy with its abuses, notably the use of royal prerogative. Hamilton states that the arguments against the president assume that teh president has already turned into an absolute monarchy without taking into considerations the checks that are meant to ensure that this is unlikely to happen. The president cannot act in many cases without the approval of the Senate, an institution he cannot control.
- 68 (Federalist - Anti Federalist) The pros and cons of the Electoral College are discussed. Hamilton argues that this seems to be the least controversial part of Article 2. The electoral college was designed to ensure that the selection of the president was last likely to be influenced by the "heat and ferments" to be expected in the general population. The temporary nature of the institution would ensure that intrigue woudl be kept to a minimum -- deals couldn't be worked out ahead of time. A legislative institution has no influence over the president's election.
- 69 (Federalist - Anti Federalist) Hamilton argues against the idea that the president is effectively a king. The office is not hereditary, it has to be reelected every four years, and has a limited veto over legislation. The power of commander in chief is less than the military powers of the king, as is how power of pardon. The president's control over foreign affairs is checked by the Senate. No such check exists for a monarch. Richard Henry Lee disagrees. The powers granted to the office of the president lead to the perpetuation of power in the hands of a small handful of individuals which will keep the president in power. He suggests that a hereditary monarchy may even be better because the family will have a connection tothe country that will make them less likely to mismanage it.
- 70 (Federalist - Anti Federalist) Anti Federalists were concerned that powers granted to the president would turn him into a king. These grant the president prerogative powers, and the ability to raise certain people to high positions, event though they are not aristicratic. The fact that the president is elected makes this worse, because those he raises to high office, especially in the military, will do all they can to ensure that he continues to win election. This adds an elements of unrest that would not exist in a hereditary monarchy. Hamilton argues that an energetic executive is essential to good government, and a singular design allows for the unity necessary to facilitate it.
- 71 (Federalist - Anti Federalist) Hamilton argues that a president must be in office for a reasonable period of time in order to be effective, and to have enough invested in the office to care about doing a good job. A degree of independence from the legislature is necessari in order for laws to be effectively implemented. Four years may not even be enough.
- 72 (Federalist - Anti Federalist) Hamilton argues against term limits. Offers a variety of reasons: The threat of removal from office is no longer an inducement to good behavior, presidents on their way out will be tempted to pad their pockets.
- 73 (Federalist - Anti Federalist) Hamilton points out two ways that the president's independence is established. Congress cannot manipulate the president's salary. This frees the president from being controlled by Congress. The executive can also protect itself with the veto, which allows the president the ability to negate the laws that the legislature sends him to enact.
- 74 (Federalist - Anti Federalist) Hamilton states that it is obvious that the president, and only a single president, should be commander-in-chief of the armed forces. He justifies the pardoning power as a means of ensuring that the justice system not be cruel. The Anti-Federalist are concerned that the president will turn into a military king.
- 75 (Federalist - Anti Federalist) Hamilton justifies the nature of treaty making power.
- 76 (Federalist - Anti Federalist) Hamilton argues that a single person should make the appointments for the executive branch.
The Constitutional Design
- Article Two from Findlaw.com.
- Full text from Avalon Project.
- Wikipedia entry.
- Article 2 of the U.S. Constitution
- ThisNation: The Executive Branch.
- Wikipedia: President of the United States.
- WIkipedia: Executive Power.
- Answers.com: President of the United States.
- Wikipedia: George Washington.
The Constitutional Convention
The executive under the:
- Hamilton Plan.
- Virginia Plan.
- New Jersey Plan.
- From US Constitution.net: Empowering a President.
Notes about Article 2 of the Constitution.
Section One:
- Annotations from Findlaw.com.
- Wikipedia: Section One.
- The Founders' Constitution: Article One, Section One.
This article begins, as do articles 1 and 3, with the vesting clause which is the mechanism that in fact separates the three powers into three institutions. The openign sentence states that: "The executive Power shall be vested in a President of the United States of America." Simple enough, but this was the result of a contentious point during the convention. How many people should head up the executive branch? Hamilton saw a strong executive, preferably a single person with near absolute power who ruled for life, as essential to good governance. Others were convinced that this would lead to a military dictatorship given time. The ultimate decision was influenced heavily by the presence of George Washington as the presiding officer of the convention. The greatest concern with having a single person as President was that he wanted to turn it into a permanent office. It had been assumed -- by Madison in Federalist #51 -- that anyone in a position of power would be fueled by ambition and would want to expand their power. A President simply might not want to step down, and might use their commender in chief power -- and control over patronage -- to do so.
This is why Washington's presence was so vital. He was the only person in the country at the time who had faced that temptation and let it go. After the revolutionary war he had to talk his officers out of taking over the government. He then resigned his commission with a flourish and went back to his fields. He said that his public life was over. He was compared to the Roman General Cincinnatus who similarly stepped down from a military commission to go back to his fields. (See also the Society of the Cincinnati). When called to preside over the convention he was worried whether he would be seen as going back on his word, but ultimately he was convinced that his participation was key to the success of the convention and ultimately of the union itself. His reputation for virtue -- control over his ambitions -- increased the degree of trust given to the proceedings. It was generally assumed at the convention that Washington would occupy the first office (which he would do, setting in place many presedents for how future presidents would use the office). So the question of design was in many ways answered not by argument, but by personality.
The question of presidential power is complicated by a key ommission in sentence's language. As opposed to Article 1, which states that Congress is vested with the legislative powers "herein granted," Article 2 does not use that language. It says all executive power is vested in the president. Supporters of the unitary executive theory argue that this means that the president's power, particularly the inherent power that come with being commander in chief, are open ended and cannot be checked by the other two branches.
The clause continues by stating that the president has a four year term. This length of time allows the president to be immune from the preferences of the general population every other election. This helps reinforce the executive's independence from the legislature. Mid term elections, the phrase we use to refer to congressional elections held at the midpoint of presidential terms, are significantly different than presidential elections. Voter turnout tend to be both lower and composed of individuals opposed to the president's policies. It concludes by stating that the President is elected together with the vice president. Nothing is said specifically about the position and what the occupant is to do. In Article 1 the Vice President is the presiding officer of the Senate, but no specific executive function is given to the position in Article 2 other than replacing the President "in case of the removal . . . from office, or of his death, resignation, or inability to discharge the powers and duties of the said office."
Clauses 2 and 3 outline the original way that Presidents and Vice Presidents were chosen: Each State shall appoint, in such manner as the Legislature may direct, a number of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or person holding an office of trust or profit under the United States, shall be appointed an elector. As with the design of the executive itself, the method of selecting the president was disputed at the convention. The Electoral College has since become highly controversial. Early on, some argued for direct elections of the president, but others were concerned whether the ordinary voter who did not have access about the ability and character of potential candidates would be able to make good decisions about who the best national executives might be. The result would simply be a variety of regionally supported candidates likely to use the powers of the office to the advantage of their region. Competitive elections for the electoral college would allow a population to select those among them who could best determine who would make the best president.
The creation of the Vice President was intended to defuse the possibility of regional candidates. As originally designed, the electors voted for two people to be president. The one with the highest number of votes, provided it was a majority, became President, while the person in second place became Vice President. One of the votes had to be for someone who did not live in the same state as themselves. This was to limit the impact of regional prejudice. Teh designers of the Electoral college did not foresee the development of political parties. Soon groups were offering candidates and organizing support for them. In 1796 this resulted in the two top offices being held by people from each of the two major parties. The Twelfth Amendment eliminated this possibility by stating that electors voted on one ballot for a president and a vice president together.
There is an additional justification of the electoral college, one rooted in the separation of powers. One of the primary resources that tyrants have to gain powers is the people. Caesar, for example, used the support of the people against the Senate. This is why they killed him, and also why some of the conspirators were hunted down in the streets. A close connection between the House of Representatives and the President could allow for a similar coup. A direct popular election could tie the powers of the two offices together and the president could use the house to pass whatever laws he pleased for whatever purpose he desired. A selection process that involved a group of people that meet for the one purpose of selecting the president would be unable to coordinate with that individual to seize additional power.
Though the states continued to determine how electors would be choosen, the day that electors meet is decided by Congress.
Useful links:
- The U.S. Electoral College.
- Debate on its usefulness.
Age and residency requirements are higher for the president than for other offices. This is the only office that must be held by a "natural born citizen."
The Vice President's function as a successor to the President is established, and clarified in the 20th and 25th Amendments.
The President is to be compensated for his service. Benjamin Franklin actually suggested that the president should serve without compensation, but that was not taken seriously at the convention. There was the issue of corruption or intimidation to worry about. Whoever controls the purse string -- as does Congress -- controls the person or office. So a clever Congress could raise or lower a President's compensation to persuade him to go along with their dictates. This would lead to a concentration of executive and legislative powers. The requirement that pay be kept steady during the term of office was to ensure that this would not happen.
Still, there are allegations often made about presidents -- as well as members of Congress -- that they make policy decisions in a way that will help them once they leave office. Hamilton argued against term limits because they would encourage elected officials to think about their careers after leaving office and would inevitably use their existing power to set themselves up for it. Recent controversies concerning donations to presidential libraries are a current example.
The first section concludes with the oath of officethe president is to take upon being sworn into office. Upon taking the first oath, Washington added "so help me God" at the end of the oath, and every president since has followed suit. This helps stir up debate concerning the role religion is, or is not, to play on the national level.
Section Two:
- Annotations from Findlaw.com.
- Wikipedia: Section Two.
- The Founders' Constitution: Article One, Section One.
The first clause in this article is the closest we get to a job description for the office. He is the commander in chief of the military, but there is no clarity regarding what it means to be commander in chief, so the functions of the office is subject to expansive or limited interpretations. These are sometimes called inherent powers since they concern what a commander ought to be able to do while a conflict is underway. Sometimes these powers have been argued to the level of plenary powers, meaning that they cannot be questioned in any other place. The controversy that can result from this claim should be obvious.
During war, Presidents often claim a variety of powers, seemingly unconnected with the conflict, fall under this clause. Lincoln, for example, freed the slavesunder the commander in chief powers. This applied only to the states that were rebelling, not the small handful of slaveowning states that did not. Lincoln had no authority over them. The 13th Amendment was necessary in order to establish that slavery was illegal across the country.
Anti-Federalists habitually looked at the commender in chief clause as proof that the country was destined to turn into a military dictatorship under the thumb of the President. The argument used against this allegation was that Congress had the power to raise and fund armies, declare war and the other war powers related to the military. The clause would only make Presidents powerful while the country was at war. Once the war was over, the military would disband and the President's power would dissipate until the next war called for the raising of a different army. But after World War II, the army did not disband, and we have had an ongoing standing army since then. Declarations of war have not been necessary to raise armies. In fact, war has not been declared since WW2, though we do seem to have been involved in military enterprises that seem to have been wars. Often our involvement in these conflicts have been driven by presidential initiatives, and justified after the fact with authorizations for the use of force. Whether this has led to an undue, or unconstitutional, increase in presidential power -- as the anti-federalists warned -- is good fodder for debate.
The clause goes on to state that the President shall require the opinion of the heads of the different executive departments. This is the closest we get to a mention of a bureaucracy, and it does not mention any specific department (like Treasury and State) only that there shall be departments. It is up to Congress to pass the laws which establish these entities. The President, by virtue of the authority to collect their opinions, is chief executive. Beyond that statement, no specific authority is granted, or denied, in the language. Again, these are powers that have been established, and contested, over the course of American history.
The heads of the executive agencies have evolved into the cabinet, and are generally considered to be among the President's key sources of advise. As the size of the country has grown, the number of executive agencies has increased as well. The range of advising organizations has also increased. This is a direct consequence of the burden placed on the presidency due to the increased responsibilities of the office. After the passage of many New Deal proposals, the Brownlow Committee recommended the creation of the Executive Office of the Presidency. And beginning with the presidency of Eisenhower, a chief of staff has headed a White House Staff that has increasingly contained the closest advisers to the President.
The President is also granted power over the judiciary in this clause. He has the power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment. This is an ancient power of executives and is intended to check potential abuses by the judiciary, but it can also create its own set of problems since pardons can be used to help political supporters. One consequence of this power, perhaps unforeseen, is the idea that since the executive is granted this power the judiciary is absolved from anything beyond the simple procedural issues associated with a case. Broader questions regarding whether a decision was "just" is given to the executive to decide.
The second clause concerns the president's treaty making and appointment powers. The former is a way to esure that a single individual would be able to overcome the particular interests that allowed the states to undermine American competitiveness by competing ageinst each other for foreign trade. The latter is a further example of the power needed to be an effective chief executive. Both are subject to Senate influnce through "advise and consent." While the former is still in use, the precise meaning of the former can be up for debate. Stories exist about early unsuccessful attempts by Washington to use the Senate as an advisory body. He began using his top level executive department appointees as advisors instead, and ever since the cabinet has been assumed to be the predominant source of presidential advise (though more recently the White House Staff has fulfilled that role).
Exceptions are made to both powers. The Constitution says nothing about executive agreements, but these are smaller level agreements that fall short of treaties and do not need Senate approval. The Constitution does stipulate that the Congress can allow the President to make inferior appointments, or even give that power to lower level officials. Depending on the relationship that the President has with Congress, the nomination process can be very controversial. When there is divided government, meaning that the President is a member of a different party than Congress, presidents may be unable to have their prefered appointments accepted by Congress. When this occurs, Presidents sometimes use the constitutional power to make appointments during recesses of Congress to place these people into offices without congressional approval.
Section Three:
- Annotations from Findlaw.com.
- Wikipedia: Section Three.
- The Founders' Constitution: Article One, Section One.
This section begins by clarifying some of the President's powers over Congress. It begins with the ability of the President to influence the legislative agenda by issuing messages concerning the state of the union. The President is then able to make recommendations about what legislation Congress should pass and what problems it should focus on. This reminds us that the President is a major source of legislative proposals. Presidents regularly send to Congress legislation that they would like Congress to pass. Presidential staffs also contain people who focus primarily on legislative relations. It is their job to organize and monitor the process that laws take on their way through the Congress.
The ability to convene special sessions of Congress tends to be limited to times when either the president or a head of state wishes to address the legislature. The ability to adjourn Congress is very limited, and rarely used, since it smacks of the types of abuse of power common to the Stuarts.
The power to receive ambassadors is a diplomatic power which also means that the President can recognize nations. Since the Senate is not given a role in checking this power, this means that the president has full power to determine what nations we recognize as legitimate and what nations we do not.
The requirement that he faithfully execute the laws is the essence of executive power, but it can also be controversial. Especially during times of divided government a President may not want to faithfully execute a law that he disagrees with. Signing statements are sometimes used to alter the meaning of legislation so that the President can claim that they are following the letter of the Constitution, while still avoiding the intent of the legislation.
The last clause in section 3 refers to an additional military power held by the president, the ability to commission all the officers of the United States.
Section Four:
- Annotations from Findlaw.com.
- Wikipedia: Section Four.
- The Founders' Constitution: Article One, Section One.
This brief section simply states that the President, Vice President, and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.
The dispute in this section regards the precise meanign of "high crimes and misdemeanors" and the fear that efforts to remove Presidents from power would be politically based, not based on actual abuses or power.
Key Constitutional Features of the Texas Executive
- Click here for Article 4 of the Texas Constitution.
- Handbook of Texas Online: Texas Governor's Office.
- Texas Politics: The Executive Branch.
- Texas Handbook Online: Edmund Davis.
As with the rest of the Texas Constitution, it is more detailed and longer than the U.S. Constitution. This reflects attempts to weaken the office. Generally, the less said about an office's powers, the more discretion its occupants to take with it. This effort was a consequence of three factors, two of which apply to the design of both the legislative and judicial branches. The Texas Constitution was designed by individuals who wanted the electorate to have greater control over the actions of government across the board. Direct elections to plural executive offices is one way to do this. We sacrifice efficiency in the execution of laws, but this is to gain greater ability, at least theoretically, to control the executive branch. A second factor is the immediate experience of reconstructions and the imposition of federal troops in the state to implement law until the state was allowed to conduct its own affairs. This included the implementation of laws that were very unpopular in the state, including the 14th and 15th amendments. A final reason is the experience Texas went through with the governorship of E.J. Davis, and the termination of his governorship in the Coke-Davis controversy.
Key Sections:
Section One: establishes the plural form of the Texas executive. In addition to the governor and lieutenant governor, it includes the attorney general, comptroller of public accounts, secretary of state, and the commissioner of the land office. The holder of each office is elected separately with its own constituency, and is not bound to any allegiance to the governor. As a party official, and through force of personality, the governor may have influence with these individuals, but there is no constitutional or legal mechanism that binds them.
Sections 2 and 3: Elections
Section 4: Establishes that the governors has a four year term of office. Before 1974, it was a two year term.
Section 5 and 6: Compensation. As opposed to the memebrs of the legislature, the governorship is a full time job. The governor cannot hold another position while he is governor. It is expected that legislators will.
Section 7: The governor is commander in chief of the state militia
Section 8: The governor can call special sessions, but must state the purpose of the session.
Section 9: State of the state address and infomration regardign public monies.
Section 10: Must faithfully execute the laws.
Section 11: The legislature must establish a Board of Pardons and Paroles and the governors must take their recommendations into consideration for pardons.
Section 12: Vacancies
Section 13: The governors' residence.
Section 14 and 15: Approval and disapproval of bills, orders and resolutions
Section 16: Powers of the Lieutenant Governor
Section 17: Death, resignation, etc of Governor.
Section 21: Office of Secretary of State
Section 22: Office of Attorney General
Section 23: Offie of Comptroller General
Sections 24 and 25: Accounts and Reports
Sources:
Terminology:
- executive branch
- electoral college.
- eligibility.
- compensation.
- oath or affirmation.
- commander in chief.
- war agencies.
- army.
- navy.
- executive departments.
- cabinet.
- reprieves and pardons.
- advice and consent.
- treaties.
- appointment.
- nominations.
- ambassadors and other public ministers and consuls.
- recess appointments.
- judicial appointments.
- information on the state of the union.
- receive ambassadors
- take care that the laws be faithfully executed
- impeachment
- treason - bribery
- high crimes and misdemeanors
Assignments:
Internet Students
Answer each of the three questions below in at least 150 words
1 - Select one of the pairs of Federalist/Anti Federalist Papers below and outline the dispute between them.
2 - Compare Article 2 of the U.S. Constitution and Article 4 of the Texas Constitution. Where are they similar and where are they different?
3 - Is is argued that the current powers of the president go far beyond the powers granted to the office in the Constitution. Critically evaluate this claim. Look at the range of powers the president is granted in the COnstituion and then look at the types of things President Obama -- or President Bush before him -- does. Is he acting within the limits set within the Constitution? Why or why not?
Due Friday March 6th.
Quiz Questions for Online Students
Summer 2009
Answer each in at least 150 words.
1. The decision to establish a singular executive on the national level was highly controverisal. Texas would later decide to establish a plural executive instead. Explain the controversies associated with the singular executive and why it was eventually written into the U.S. Constitution and why the plural executive was written into the Texas Constitution.
2. Fully detail the original intent of the Electoral College and how the institution has been modified over time. Does it continue to serve its original purpose? What are the arguments for and against substituting the Electoral College with a direct election by the general population?
3. The Constitution says little about the job description of the President. Nevertheless, the position has expanded greatly over the course of American history. Some argue that this expansion has violated the original intent of the authors of the Constitution while others claim that the position has to evolve in order to keep pace with a rapidly changing and dynamic society. Outline the pros and cons of an increasingly powerful presidency.
4. Detail the way the checks the president has over the other two branches are being used currently. How is Obama checking the power of the legislature and the judiciary. Use current news courses to answer this question.
Write at least 150 words for each assignment. Due by midnight July 19th.
Topics of the Federalist and Anti-Federalist Papers
- 67 (Federalist - Anti Federalist) George Clinton outlines a variety of fears concerning the executive branch which Hamilton argues are misrepresentations of the actual design in the Constitution.
- 68 (Federalist - Anti Federalist) The pros and cons of the Electoral College are discussed.
- 69 (Federalist - Anti Federalist) Can the office of the presidency lead to the perpetuation of power in the hands of a small handful of individuals?
- 70 (Federalist - Anti Federalist) Will the presidency turn into an elected king?
- 71 (Federalist - Anti Federalist) Hamilton argues that a president must be in office for a reasonable period of time in order to be effective, and to have enough invested in the office to care about doing a good job. A degree of independence from the legislature is necessari in order for laws to be effectively implemented. Four years may not even be enough.
- 72 (Federalist - Anti Federalist) Hamilton argues against term limits. Offers a variety of reasons: The threat of removal from office is no longer an inducement to good behavior, presidents on their way out will be tempted to pad their pockets.
- 73 (Federalist - Anti Federalist) Hamilton points out two ways that the president's independence is established. Congress cannot manipulate the president's salary. This frees the president from being controlled by Congress. The executive can also protect itself with the veto, which allows the president the ability to negate the laws that the legislature sends him to enact.
- 74 (Federalist - Anti Federalist) Hamilton states that it is obvious that the president, and only a single president, should be commander-in-chief of the armed forces. He justifies the pardoning power as a means of ensuring that the justice system not be cruel. The Anti-Federalist are concerned that the president will turn into a military king.
- 75 (Federalist - Anti Federalist) Hamilton justifies the nature of treaty making power.
- 76 (Federalist - Anti Federalist) Hamilton argues that a single person should make the appointments for the executive branch.